Therrien’s position on detainees raises concern

Canada’s new privacy commissioner defended the detaining of foreign nationals who had not been charged with a crime, a process that was later ruled unconstitutional.

Daniel Therrien supported the security certificate process in 2005 when he was senior counsel at the Justice Department. Two years later, the Supreme Court of Canada ruled that security certificates violated the Charter of Rights and Freedoms.

In particular, Therrien argued that holding a foreign national for up to nine years should not be considered indefinite detention.

Some opposition politicians see this as a red flag. If he is approved by Parliament, Therrien will become the chief watchdog of Canadians’ privacy rights.

“This is not the way to go with somebody who will have the job of overseeing citizens who will feel that their rights are not respected by government agencies.”

Back in 2005, Joyal sparred with Therrien while the Senate studied the Anti-Terrorism Act, a bill passed three months after the attacks of Sept. 11, 2001.

At a meeting of a special committee to review the act, Joyal asked about security certificates, which allowed Canadian authorities to detain and deport foreign nationals who were seen as national security threats.

Canadian courts do not allow for indefinite detention, and Therrien argued that does not occur.

“We detain people under a security certificate with a view to removing them,” he said.

“It may take a while, but it is not indefinite in the sense that we will not be able to remove them, yet we are detaining them.”

Under questioning, Therrien said the longest such time a person was held was nine years. Another person was held for five years. Others were held for two years without ever appearing before a court.

Joyal asked whether detaining someone for years without a court appearance would breach the principle of due process.

Therrien testified that the certificates underwent judicial oversight and had to be deemed reasonable by a judge. However, those decisions could take one or two years while someone would remain detained.

“I fully recognize that the process leading to removal can be lengthy,” he said.

“However, I respectfully make a distinction between ‘lengthy detention’ during a removal process and ‘indefinite detention.’”

Therrien was representing the government position at the time, and it is not clear what role, if any, he had in crafting the security certificate rules.

But Joyal still sees this as a clash with Therrien’s stated love for human rights. On Tuesday, Therrien cited human rights 18 times during two hours of testimony before the Senate about his appointment.

“My career has been based on respect for human rights,” he said.

Joyal said he remains skeptical.

“If you put both statements in balance, you certainly feel that there is a gap between his sudden passion in human rights and what he was defending several years ago.”

NDP MP Jack Harris said he is concerned because the security certificates were infamously secretive, with evidence even being withheld from lawyers of the accused. Harris said it is too close for comfort for Therrien to go from a government lawyer to one of its chief watchdogs.

“There’s so much opportunity for a conflict of interest that one would wonder why he should be appointed in the first place.”

In the House of Commons, Treasury Board president Tony Clement said the NDP was shamefully dragging Therrien’s name through the mud.

Therrien could not be reached for comment Wednesday. He is declining interviews while his appointment is being considered by Parliament.

He has told Parliament his career gives him deep insight into Canada’s privacy system, and he sees his new role as being a champion for privacy rights. His appointment could become final this week.